Open Commonwealth v. Massachusetts Municipal Association (SPR 20222464)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 15, 2022 SPR22/2464 Geoff Beckwith Executive Director and CEO Massachusetts Municipal Association 3 Center Plaza, Suite 610 Boston, MA 02108 Dear Mr. Beckwith: I have received the petition of OpenCommonwealth appealing the response of the Massachusetts Municipal Association (Association/MMA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 19, 2022, OpenCommonwealth requested four categories of records. The Association responded on October 29, 2022, stating that “the MMA is a private nonprofit corporation established under Chapter 180 of the Massachusetts General Laws, and thus the public records act is not applicable to the MMA, as [the MMA is] not a public entity or agency.” Unsatisfied with the Association’s response, OpenCommonwealth appealed, and this case was opened as a result. The Public Records Law The Public Records Law applies to all records: made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as defined in section 1 of chapter 32. G. L. c. 4, § 7(26). The Public Records Law therefore applies to public entities, and does not apply to private entities who are not engaged in an agency or contractual relationship with a public entity. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832 • Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Geoff Beckwith SPR22/2464 Page 2 November 15, 2022 The Association’s Status as a Public Entity In its October 29, 2022 response, the Association states that “the MMA is a private nonprofit corporation established under Chapter 180 of the Massachusetts General Laws, and thus the public records act is not applicable to the MMA, as [the MMA is] not a public entity or agency.” The Supreme Judicial Court has developed a five factor test to determine whether an organization is considered a “public entity” for purposes of the Public Records Law. See Massachusetts Bay Transp. Auth. Ret. Bd. v. State Ethics Comm’n (Board I), 414 Mass. 582, 589-91 (1993) (outlining the multi-factor test); see also Globe Newspaper Co. v. Massachusetts Bay Transp. Auth. Ret. Bd. (Board II), 416 Mass. 1007 (1993) (applying the test in the context of the Public Records Law). The five factors are as follows: 1) the means by which the entity was created; 2) whether the entity performs an essentially governmental function; 3) whether the entity receives or expends public funds; 4) the involvement of private interests; and 5) the extent of control and supervision exercised by government officials, agencies, or authorities over the entity. Board II at 1007; Board I at 587. The five factors of this test are cumulative, and no one factor is dispositive. Board I at 587. Creation of the Entity The first factor considered in this analysis is the means by which the entity was created. See Board I at 590. This factor requires the presence of some form of legislative action underpinning the creation of the entity. Id. at 587, 589. In this case, the Association explains that it is “a private nonprofit corporation established under Chapter 180 of the Massachusetts General Laws.” Where the Association is a private nonprofit corporation, it lacks the sort of direct “legislative underpinning” discussed in Board I. See Board I at 589–90. As a result, analysis of this factor strongly favors a determination that the Association is not a public entity. Performance of an Essentially Governmental Function The second factor in this analysis concerns whether the entity performs an “essentially governmental function.” See id. at 590. On its website, the Association lists the following “five key elements of the MMA mission:”

Geoff Beckwith SPR22/2464 Page 3 November 15, 2022 1. To develop broad support for issues affecting local government and to advocate for those issues before state and federal agencies and the general public. 2. To preserve and advance the decision-making authority of local government, recognizing the association’s role as the lead municipal advocate on personnel management and state revenue sharing matters. 3. To provide and develop low-cost, high-quality services for cities and towns as an alternative to relying on the private sector. 4. To educate local officials and to stimulate, encourage and coordinate the communication of ideas and positions among local officials, state and federal officials, key opinion leaders and the general public. 5. To improve the quality of life in cities and towns, by assisting local officials with efforts to make services more efficient and more responsive to the citizens of our municipalities. The Association also states that its “goals include public policy advocacy, membership education, intergovernmental relations, services to cities and towns, public awareness, and unity.” While some of the Association’s functions overlap with traditional government functions, such as “to provide and develop services,” “to educate local officials,” and “to improve the quality of life in cities and towns,” these are by no means exclusively state functions, and numerous private entities provide similar types of services across the Commonwealth. Additionally, the Association’s first two mission elements of advocating for specific policy issues are typical functions of private organizations. Accordingly, an analysis of this factor would tend to favor a finding that the Association is not a public entity. Receipt and Expenditure of Public Funds The third factor examines whether the entity receives or expends public funds. Board I at 590. The Supreme Judicial Court has stated that “receipt by an entity of substantial funding from a State agency does not necessarily indicate that the entity is a public instrumentality.” Board I at 590. The Court has also stated that “analysis of this factor . . . should focus on the use of the public funds received by the entity in question, taking into consideration the private interests involved.” Board I at 591. Based on information available from the Association’s website, it is unclear whether or not the Association receives or expends public funds. Accordingly, it is unclear whether an analysis of this factor would weigh in favor of the Association being a public entity. Involvement of Private Interests; Control and Supervision The final two factors in this analysis relate to the extent of any involvement, control, or supervision exercised by governmental officials, agencies, or authorities over the entity. See Board I at 591; Board II at 1007.

Geoff Beckwith SPR22/2464 Page 4 November 15, 2022 On its website, the Association states that “the MMA is governed by a 35-member Board of Directors composed of municipal officials from across the state – mayors, select board members, councilors, municipal managers and finance committee members – who are elected by their peers to represent Massachusetts communities.” Where oversight and supervision of the Association appears to be entirely in the hands of elected officials, an analysis of this factor would tend to favor a finding that the Association is a public entity. The Five Factors on Balance The Supreme Judicial Court has stated that the five factors of the public entity test are to be balanced, and no one factor is dispositive. Board I at 587. On balance, the lack of a legislative underpinning, and the Association’s function as a policy advocate indicate that the Association is not a public entity. The supervision of public officials and receipt or expenditure of public funding would not be sufficient to render it a public entity in this case. Therefore, the analysis of these factors favors a finding that the Association is not a public entity, and therefore not subject to the Public Records Law. Conclusion Upon a review of each factor of the five-point public entity test, I find that the Association is not a public entity, and thus not obligated to disclose records in response to requests made directly to the Association under the Public Records Law. Therefore, this office holds no authority to compel the Association to release any responsive records. Accordingly, I will now consider this administrative appeal closed. If OpenCommonwealth is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Geoff Beckwith